"Two Little FISA Frankensteins"

There will be a vote on FISA today. The Senate will consider the Senate Intelligence Committee's bill, S.2440, minus its provision calling for telecom immunity, and S. 2441, the Senate Judiciary Committee's bill, which has no immunity provision, but is somewhat better on wiretapping. The ACLU says,

"Another way to think of it: S 2440 is good on immunity and bad on wiretapping while S. 2441 is bad on immunity but good on wiretapping. It looks as though Senator Reid has created two little FISA Frankensteins."

[Edit: I assume the ACLU means the two provisions of S 2440 that will be taken up. It does have another provision calling for immunity. Reid's statement later today indicates he's changed his mind and will now have the Senate consider the entire House Intel bill, including the provision with immunity.]

The ACLU is asking Senators to participate in the Dodd Filibuster and prevent the passage of any bill that includes immunity.

"Senator Reid is forcing senators to trade the Fourth Amendment to avoid immunity or to give immunity in order to protect Fourth Amendment rights. The ACLU, on behalf its members across this country, asks that he bring the Judiciary Committee’s FISA bill to the floor -- without immunity for companies that broke the law," said Fredrickson.

If nothing gets passed, or if Bush vetos a new bill, it's not the end of the world. The Protect America Act, hastily passed before Congress recessed in August, has a 180 day expiration date, which is February. Then again, the Patriot Act had sunsets and look what happened there.

We don't need another end-run around the Fourth Amendment. [more....]

As Brandon Mayfield, the Portland, OR attorney wrongfully arrested and suspected of involvment in the Madrid train bomings says,

The balance between liberty and security has already been hammered out by an earlier, apparently more enlightened generation of Americans and can be seen in the language of the 4th Amendment to the Constitution.

That perfect balance between criminal investigation and respect for a person’s privacy is known as probable cause. No search or arrest should be made without a warrant, and no warrant should issue without probable cause that a crime has been committed. Further the warrant must particularly describe the place to be searched and the person to be seized. . . .

Yes, it's opposing bills that include immunity. I usually edit posts in the first few minutes after they go up as it's too hard to do in the Scoop draft page. If you see an error up more than 10 minutes after a post goes live, please point it out.

but I added an edit. The House Intel 2440 bill had three Titles, one with immunity. But Harry Reid initially said he'd only take up two of them and not the one with immunity. That's why (I think) the ACLU said 2440 was good on immunity. Today he said he was going to make 2440 in its entirety (with immunity) the base bill and submit the whole thing...along with the Judiciary bill which doesn't have immunity. Then they will debate immunity Monday.

Under the Wiretap Act, statutory damages are $10,000 per agrieved party, or arguably per phone line. If, as I suspect, there was a period when the traffic analysis engine was not properly certified by the AG (The Ashcroft hospital affair), we're looking at a hundred million plaintiffs times $10,000, or a trillion buckjs, 4 times ATT's market capitalistion.

I'll leave it to any respondents knowledgable inBannkruptcy lay to suggest how that would play out.